Balasubramaniam and another vs Nagalingam

Rengasamy, J.—This appeal is against the order of the learned Subordinate Judge, Pattu-kottai, granting injunction against the appellants,

who are the defendants 4 and 5 in the main suit. The respondent herein, as plaintiff, filed the suit O.S. No. 206 of 1993 against his brother, mother

and sister, who are the defendants 1 to 3 and the alienees of his brother the appellants herein.

The respondent herein, who is the plaintiff, contended before the lower court that the properties mentioned in the scheduled are joint family

properties in the joint possession of himself and the defendants 1 to 3 that his brother, the first defendant, was evading partition of his one-fourth

share though he was demanding on several occasions and the appellants (defendants 4 and 5) were also threatening to interfere with his possession

and therefore, he filed the suit for partition of his one fourth share and also for injunction against these appellants, who are threatening to trespass

into the suit property. These appellants, who filed the written statement, contended that in the first item of the suit property, they have purchased 50

cents under three sale deeds executed by the first defendant, that the sale was for the joint family necessity and therefore, the sale is binding upon

the plaintiff and as they were given possession of this property he is not entitled to injunction. However, the court below having found that the

appellants herein, the purchasers, have obtained documents to the detriment of the interest of the plaintiff has held that he is entitled to the

temporary injunction. Hence this appeal.

The learned counsel for the appellants contended that after the death of the father Muthusamy Ondrier, the first defendant, who is the elder

brother of the plaintiff, was acting as the Manager of the family, that as the building started by the father stood unfinished, for the purpose of

completing this building loan was raised by the first defendant, for the discharge of which the first item of the suit property was sold, that as the total

extent of the joint family property is more, even by equity for the one fourth share of the first defendant, the appellants herein are entitled to have

the property purchased by them to be allotted for the share of the first defendant and as already possession has been given to them by the first

defendant, the petitioner is not entitled to disturb their possession or seek interim injunction in respect of this property, which is not in his

possession. The learned counsel Mr. Jaya-raman argued that the decision of this Court in Smt. Gunabhusaniammal v. G. Nara-simhan (1995) 1

MLW 374 is applicable for this case because the bench of this court has held that the purchaser of the joint family property, if found in possession

of the share purchased by him, can be allowed to enjoy that share without any disturbance to the other shares. But on a reading of that decision, I

find that it was contended in that case that the property which was sold by the father, was the self acquired property of the father and even

otherwise the father had one fourth share in the joint family property and the property conveyed by him. which is a portion in the house having

separate entrance was less than one-fourth share in the family property. As it was found that the portion sold was having separate entrance and the

enjoyment of this house portion by the purchaser was not in any way affecting the enjoyment of the other portion by the joint family members and

there was dispute as to the joint family character of the property the Bench took the view that the purchaser could be allowed to continue in

possession during the pendency of the suit. But in this case, admittedly, the first item of the suit property, which was been purchased by the

appellants herein, is a joint family property in which the respondent herein is entitled to one-fourth share.

The learned counsel for the respondents Mr. Yamunan contended that, on a perusal of the list of properties, it could be seen that the first item

alone is the substantial and valuable property where as all other items are of meagre value and therefore, the appellants cannot contend that they

are entitled to the equity of taking the first item for the share of the first defendant, when the plaintiff respondent is entitled to one-fourth share in this

property and therefore, the appellants cannot contend that they are entitled to exclusive enjoyment of this item the learned counsel Mr. Yamunan

further argued that the first defendant even during the life of his father, who died just a few months prior to the sale of this property to these

appellants, was living separately as he married a woman against the wishes of his father and as a temporary arrangement, a few items mentioned in

E.P. 24 alone were given for the separate enjoyment of the first defendant by his father and therefore the first defendant was not capable of giving

possession of the first item of the schedule to the appellants herein. However, the court below did not give much weight to Ex. P-24 as it required

evidence to accept the credibility of this document. The father of the plaintiff died on 14-1-1992 as seen from Ex. P-7 and the first defendant has

sold a portion of the first item under Ex. R-3 on 25-5-1993 the recital as to the consideration also reads that for the first defendant''s travel to a

foreign country, for the purchase of the bulls and also for the family expenses, the properties were sold. As rightly contended by the learned

counsel for the respondent, the money required for the first defendant to go abroad cannot be joint family necessity. Anyhow, at this stage, I need

not probe this question because the prima facie evidence and the balance of convenience is the Criteria for granting the temporary injunction. In the

whole of the 14 items alone is the valuable properly worth Rs. 2,40,000/-. Whereas the other items are not even one- eighth of this value.

Therefore, the plaintiff/respondent as co-sharer of the property, is entitled to joint possession along with his mother and sister. The appellants, who

are the strangers to the family, cannot claim either exclusive possession for themselves or joint possession along with the respondents and other

family members. The documents produced on both sides are mere kist receipts and pattas which are not helpful to decide the actual physical

possession. As the registered sale deeds have been executed in favour of the appellants herein, it appears pattas have been transferred in their

names, that too after the filing of the suit. Therefore, the documents on the side of the appellants do not prove their actual possession. Anyhow, as

the respondent/plaintiff, being a co-sharer, is entitled to be in joint possession along with his family members his possession cannot be disturbed by

the purchasers who are the strangers to the family.

Hence, the court below is perfectly right in granting injunction in favour of the respondent/plaintiff. As I find no materials to interfere with the

findings of the Court below, the appeal deserves to be dismissed and the same is accordingly dismissed. No costs.

Appeal dismissed.